Sanders on Reasonable Doubt About James Bradley Thayer

Anthony B. Sanders, Institute for Justice, is publishing Reasonable Doubt About James Bradley Thayer in volume 18 of the Elon Law Review. Here is the abstract.

This Article responds to some recent pathbreaking work concerning the real-world justification for James Bradley Thayer’s famous 1893 essay The Origin and Scope of the American Doctrine of Constitutional Law. Thayer’s essay defended the use of a “beyond a reasonable doubt” standard when judges engage in judicial review and additionally claimed the standard was of longstanding and widespread acceptance. The recent scholarship has argued Thayer was justified in this historical claim. I respond by arguing that although the standard was mentioned and praised in a variety of sources, in line with Thayer’s claim, when seen in the context of a wider body of caselaw it becomes quite suspect. I survey how state high courts applied—or, more importantly, did not apply—the reasonable doubt standard during a sample of years shortly before Thayer’s essay: 1880 through 1884. I find these courts only mentioned the standard in a small minority of cases when they exercised judicial review. When courts relied on the standard they did so haphazardly and as a practical matter it did little work to affect the outcome of cases. Indeed, these courts seemed to have simply avoided the standard whenever they wanted to. It was exceedingly rare for majority opinions to invoke it when declaring a law unconstitutional, even though the same majorities ruled laws were constitutionally invalid in more than a quarter of the cases in which they exercised judicial review. Before Thayer the standard was, for the most part, exactly what he claimed it was not: rhetoric. But although Thayer was wrong about the past, he shaped the future. Thayer’s version of the reasonable doubt standard, directly or indirectly, later became the modern rational-basis test. That is a standard that influences the outcome of cases. But it is not the same thing. Thus, a tradition of “reasonable doubt” in actual holdings was of limited reality before Thayer. But he is at least partly responsible for the later very robust—but different—reality.

Download the article from SSRN at the link.